President Trump needs a win. Fortunately, one is within reach.
In 1995, Congress passed the Jerusalem Embassy Act, a law that mandated moving America’s embassy in Israel from Tel Aviv to a “unified” Jerusalem by May 31, 1999. But that move never happened, and, as Ambassador John Bolton pointed out in his recent congressional testimony on the subject, the U.S. embassy to Israel remains the only American embassy not located in the host country’s capital.
How has the Jerusalem Embassy Act not yet been fully executed? One of the law’s provisions grants the president the authority to bypass its penalty for not moving the embassy by issuing a waiver, renewable every six months, which invokes “the national security interests of the United States.” The latest waiver was issued on June 1 of this year.
Every president since 1999, from Clinton to Bush to Obama to Trump, has kept up the unending string of waivers, declining to move the embassy to Jerusalem. Some of them have promised, as candidates, to make the move, but none have followed through. The next waiver is set to expire on December 1. On that day, Trump can break the streak.
Security concerns do not merit a waiver of this provision of the Jerusalem Embassy Act. It is true, as events across the Arab world in 2012 showed, that U.S. embassies and consulates are targets for attacks by violent extremists. That has been the case since at least 1998, when al-Qaeda terrorists blew up American embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya.The response of the United States to those attacks, however, was not to withdraw from Nairobi or Dar es Salaam. As Northwestern University Pritzker School of Law professor Eugene Kontorovich argued in his own congressional testimony, after these very attacks “the Executive undertook to hunt down and punish the perpetrators, while Congress appropriated extraordinary amounts for improved security at diplomatic facilities around the world.”
Recent events do not suggest that beginning to grant Jerusalem equal status with other world capitals would significantly endanger American security. Last April, Vladimir Putin’s Russia became the only country on Earth to actually recognize West Jerusalem as the capital of the Jewish state. The silence across a Middle East split on religious lines, riven by proxy wars, and aflame with extremism was deafening.
America’s policy of maintaining its embassy in Tel Aviv was born not of security concerns, but of legal deference to the U.N. General Assembly’s Resolution 181, a 1947 proposal that would have made Jerusalem into an international city governed by a “Special International Regime,” while partitioning the rest of Mandatory Palestine into Arab and Jewish sections.
That proposal never took effect. The U.N. General Assembly has no power beyond its own budget-making authority, and the proposal was rejected by the Arab states from the beginning. Upon its declaration of independence, five different Arab countries declared war on Israel with the explicit goal of ending the nascent Jewish state in its cradle, partition be damned. For all of these reasons, as Professor Kontorovich explains, “the proposed treatment of Jerusalem by Res. 181 should have been absolutely irrelevant in 1948, and it is nothing but a historical footnote today.”
Recent events do not suggest that beginning to grant Jerusalem equal status with other world capitals would significantly endanger American security.
Another argument against moving the U.S. embassy to Jerusalem has been that the “final status” of the city remains undecided. The 1948–49 Israeli War of Independence left the city divided between two countries, with a Jordanian army occupying what is now called East Jerusalem and an independent Israel controlling West Jerusalem. That split persisted even after Jordan surrendered its claim of sovereignty over East Jerusalem in 1988.
When Israel took East Jerusalem from Jordan in the Six-Day War of 1967, it annexed the remainder of the city, a move still not recognized internationally. The argument goes that, were the U.S. embassy moved to Jerusalem, it could prejudice final-status negotiations between the Israelis and Palestinians over a city that has been divided in one way or another since the Truman administration.
That argument is, to quote Ambassador Bolton, “at best disingenuous, since no serious proposal has ever suggested building Embassy facilities anywhere east of the Green Line [in East Jerusalem].” Nor has any serious proposal for a peaceful settlement to the Israeli–Palestinian conflict since the Oslo Accords suggested that Israel give up its claim to West Jerusalem, where the U.S. embassy could be opened.
Indeed, a U.S. embassy is already open in a divided capital of a Middle Eastern country. Nicosia, the capital of Cyprus, has been divided since a Turkish invasion in 1974 cut the island nation and its capital in two. Despite the lack of a resolution to “final status” issues between Greek Cypriots and Turkish Cypriots, the presence of ~40,000 Turkish troops in the north, and the impediment of a fortified U.N. partition zone between the two halves of the capital city and the entire country, the American ambassador to Cyprus has lived comfortably in south Nicosia for decades, firmly signaling our support to the government of the Republic of Cyprus.
Official U.S. policy towards Israel, our most important Middle Eastern ally, is to give deference to a defunct U.N. General Assembly Resolution that never had the force of law; to undermine legitimate Israeli claims to West Jerusalem; and to allow decades-old threats of violence to veto where and how America’s ambassador and diplomatic staff conduct their work and live their lives.
Moving the U.S. embassy to Jerusalem is complicated, and should only be done in consultation with the Israelis, with the knowledge of Arab governments, and with a great deal of sensitivity to the holy sites in East Jerusalem. But it is the right thing to do and it would be an immediate win for President Trump.